from the forget-you dept

Earlier this summer we wrote about some ridiculous demands coming out of France, asking that Google expand the "right to be forgotten" globally. As you hopefully already know, last year, a European court came out with a troubling ruling that required Google into a sort of "right to be forgotten" situation, where links associated with someone's name that were magically deemed no longer relevant, needed to be "de-linked." Google reluctantly complied, and has since been busy de-linking many individuals from totally factual news stories about them. But, given that this was the law in Europe, it only did so in Europe.

This is a troubling development that risks serious chilling effects on the web.

While the right to be forgotten may now be the law in Europe, it is not the law globally. Moreover, there are innumerable examples around the world where content that is declared illegal under the laws of one country, would be deemed legal in others: Thailand criminalizes some speech that is critical of its King, Turkey criminalizes some speech that is critical of Ataturk, and Russia outlaws some speech that is deemed to be “gay propaganda."

If the [French regulator's] proposed approach were to be embraced as the standard for Internet regulation, we would find ourselves in a race to the bottom. In the end, the Internet would only be as free as the world’s least free place.

We believe that no one country should have the authority to to control what content someone in a second country can access. We also believe this order is disproportionate and unnecessary, given that the overwhelming majority of French internet users—currently around 97%—access a European version of Google’s search engine like google.fr, rather than Google.com or any other version of Google.

I can't see into the future, but I'll take a wild guess and suggest that the French regulators aren't going to just back down following this response, no matter how reasonable and rational it is. European regulators continue to seem to think the internet can be twisted, censored and molded in their own interest, and don't seem to understand just how badly that will backfire. It's likely that this simple explanation will fall on deaf ears and there will soon be a big fight over this. Stay tuned.

from the sigh dept

While it seems that too many people and organizations think that the problem with the internet is too much anonymity, there are those who see the opposite as being the case. Google, for instance, at one point instituted a "real name" policy for its platforms, arguing that areas like the comments section on YouTube, which required a real name login, would be worlds better if only everyone had to put their real names on their comments. It was a dumb idea for several reasons, including the complete unworkability of the policy and the fact that, haha, nothing can clean up YouTube's comments section, you silly fools. For these reasons, Google eventually dropped the policy and restored anonymity on its platforms, and yet somehow the world kept turning.

Facebook too has adopted a real name policy and it's been every bit as effective at tamping down unruly behavior. Which is to say that it hasn't. At all. And, in the meantime, valid reasons for wanting to be anonymous online are thrown by the wayside. As it turns out, one German privacy watchdog group considered this an important enough issue to go on the muscle and declare that Facebook must allow anonymous accounts on its platform. Per Bloomberg:

Facebook Inc. was ordered by a German privacy watchdog to allow users to have accounts under pseudonyms on the social network. Facebook may not unilaterally change such accounts to the real names of users and may not block them, Johannes Caspar, Hamburg’s data regulator, said in an e-mailed statement. The company, whose European headquarters are in Ireland, can’t argue it’s only subject to that country’s law, he said.

“Anyone who stands on our pitch also has to play our game,” said Caspar. “The arbitrary change of the user name blatantly violates” privacy rights.

Let's be clear: anonymous speech is an ideal I think everyone should embrace. That said, this move by the regulator is simply another step in an ongoing trend in which European companies appear to want to wield a heavy regulatory hammer on foreign, and especially American, companies. And that trend isn't a good one for a whole host of reasons. Nationalism when it comes to an internet that by definition ignores borders is going to create havoc in an online world that feeds off of open speech and communication. While privacy rights are a laudible goal, creating a patchwork of regulatory rules for companies whose business is the internet is certainly not. And European targeting of American companies in this respect is only going to create a regulatory proxy war that nobody will benefit from.

The most disappointing part of all of this is that this particular story never would have happened if Facebook, with its American roots, had simply stood up for basic American ideals, of which anonymous speech is counted. You simply can't even graze the history of America without encountering the immense importance of anonymous speech, from the publication of Common Sense to the Supreme Court's recognition of it being a basic American ideal. For Facebook to open the door to regulatory abuse by a foreign nation by not honoring this heritage is extremely disappointing. Facebook's reaction to this news is as maddening as it is nonsensical.

“The use of authentic names on Facebook protects people’s privacy and safety by ensuring people know who they’re sharing and connecting with,” the company said in an e-mailed statement.

Ensuring people's privacy by taking away part of that privacy is an interesting theory in that it's self-contradictory on its face. Like I said, there are no good guys in this story, mostly because Facebook has ensured it won't play that role.

from the who's-afraid-of-a-little-rebranding? dept

Back in May, we wrote about the European Commission's sharing "concerns" about corporate sovereignty chapters in trade agreements. The Commissioner responsible for trade, Cecilia Malmström, even went so far as to say that the present investor-state dispute settlement (ISDS) system was "not fit for purpose in the 21st century." But rather than removing something that is unnecessary between two economic blocs with highly-developed and fair legal systems, she instead proposed to "reform" it, and to start working towards an international investment court.

to ensure that foreign investors are treated in a non-discriminatory fashion, while benefiting from no greater rights than domestic investors, and to replace the ISDS system with a new system for resolving disputes between investors and states which is subject to democratic principles and scrutiny, where potential cases are treated in a transparent manner by publicly appointed, independent professional judges in public hearings and which includes an appellate mechanism, where consistency of judicial decisions is ensured, the jurisdiction of courts of the EU and of the Member States is respected, and where private interests cannot undermine public policy objectives;

The wording is extremely vague, and leaves plenty of room for a kind of ISDS-Lite to be agreed between the EU and US in TAFA/TTIP. Many in Europe regard the proposal as little more than a face-saving compromise that allows the opponents of ISDS to claim that "this is the end of ISDS in trade deals," while allowing supporters to maintain that it has merely been re-branded, rather than removed.

We don't know what the US government thinks of the idea, but we do have a fascinating post on the proposal from The Heritage Foundation, which describes its mission as "to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense." Its views on the EU's corporate sovereignty reforms are quite clear:

The EU's proposal, backed by a vote of the European Parliament on July 8 -- that the TTIP should establish a permanent investment court, not an ISDS mechanism -- is a bad solution in search of a non-existent problem. ISDS mechanisms work well to secure basic legal protections for a signatory state's nationals abroad. The U.S. should firmly reject the EU's proposal and insist that TTIP establish an ISDS.

The rest of the post provides rare insights into the thinking of the pro-ISDS, pro-big business camp in the US. Bizarrely, it describes corporate sovereignty tribunals as:

designed to safeguard fair, unbiased, and transparent legal processes by providing independent and impartial arbitration.

That's an odd description of processes that take place in secret, with no case law to guide decisions, no limits to damages, no right to appeal, and where the tribunal members are corporate lawyers who can also act for the same companies that appear before them in other cases, because there are no rules governing conflicts of interest. But more interesting than this topsy-turvy view of reality is the following revealing comment:

because any case inside the EU can ultimately reach the European Court of Justice (ECJ), and the ECJ is mandated to make decisions that promote deeper European integration, it is not clear how the U.S. can rely on the ECJ to rule fairly when the EU seeks to promote integration in ways that discriminate against the U.S.

Essentially, then, The Heritage Foundation objects to Europe's highest court doing its job of strengthening the European Union, and wants supranational corporate sovereignty tribunals as an option to overrule its judgements -- confirming critics' worst fears about ISDS undermining democracy. The post then goes on to list a number of problems that the Foundation sees with the EU's proposed international investment court, many of which again display a curious inversion of reality. For example:

[an investment court] would have limited accountability and few checks and balances.

That is precisely the situation with corporate sovereignty tribunals, which have no checks or balances, and no limits to their power, as clearly shown by the $50 billion award made against the Russian government last year.
The post concludes:

The EU is advancing this proposal in a futile and wrong-headed effort to win over critics who are fundamentally skeptical about freer trade. These critics had not previously raised any objections to the many ISDS mechanisms to which EU nations are already party: They began to complain only when the U.S. became involved.

That's true, because previous trade agreements incorporated ISDS as a mechanism for rich Western countries -- including those in the EU -- to use to sue poor, developing countries. Since the latter had few, if any, investments in the Western countries, there was little or no risk that they would use corporate sovereignty against the richer nations. TAFTA/TTIP changes that situation dramatically. Both the US and EU have huge investments in each other: the European Commission estimates them as more than $1.75 trillion dollars in both directions -- a clear demonstration ISDS is not needed in order to encourage investors. If there is a corporate sovereignty chapter in TTIP, tens of thousands of companies on both sides of the Atlantic will gain the power to sue governments over policies they claim could impact their future profits adversely.

That is why critics have raised the issue now, and partly why the EU has proposed moving away from such a manifestly flawed approach. Given that it believes in "a strong national defense," it's curious that The Heritage Foundation is desperate to preserve a system that gives foreign investors such a powerful weapon to use against America.

from the z dept

Zorro, the masked vigilante who wields justice in the form of a sword, was first brought to the world in 1919 by Johnston McCulley. As such, some portion of the Zorro existence is now in the public domain in many jurisdictions. That hasn't stopped Zorro Productions Inc. from claiming all kinds of intellectual property rights on all things Zorro, of course. A few years back, there was a lawsuit between Zorro Production and Mars over a depiction of the hero in a commercial for M&Ms. That was a trademark claim, the rights for which Zorro Productions claims for itself, and one of the interesting questions in the case was whether such a trademark claim could be made upon a character that had entered into the public domain. Put another way: can the expiration of copyright law on a fictional character be circumvented through a trademark claim. One of the keys to answering that question, as is discussed in the above post, is whether a specific use of the character would confuse the public as to the source of the original creation, or if it might be misconstrued as any kind of endorsement. Mickey Mouse, for instance, equals Disney. Does Zorro equal Zorro Productions? Of course not.

Late last month, the cancellation division of the office that manages community trademarks within the European Union issued a ruling declaring that a "Zorro" trademark was invalid in the categories of printed matter and entertainment. According to a just-released English version of the ruling, when the average consumer sees "Zorro," he or she will assume the story of the character is being told, but not recognize "Zorro" as an indicator of origin. As such, it's deemed to be merely descriptive and not sufficiently distinctive.

This was sparked after Zorro Productions had waged a legal war with Robert Cabell, who created a theatrical production entitled Z - The Musical of Zorro. Cabell had responded to the attack by trying to get the EU to acknowledge that the character was in the public domain from a copyright perspective and that the trademarks held by Zorro Productions had been registered fraudulently. The EU concurred.

"If a title in question is famous enough to be truly well known to the relevant public where the mark can be perceived in the context of the goods/services as primarily signifying a famous story or book title, a mark may be perceived as non-distinctive," states the decision. "A finding of non-distinctiveness in this regard will be more likely where it can be shown that a large number of published version of the story have appeared and/or where there have been numerous television, theatre and film adaptations reaching a wide audience."

Zorro, which has resulted in 38 films, fits this description, says the Office for Harmonization, which adds that "although it is possible for titles of books or names of fictional characters to function as indicators of trade origin, it is dependent on the particular goods and services which they are applied for."

And so Zorro has been freed from the EU prison of intellectual property, at least in these respects. And, more importantly, this is a good thing. I have no idea of the quality of Cabell's musical about the masked vigilante, but I damn well know that a character created a century ago, whose author is long-dead, ought not be denied in the use of the public in the aims of creating more art simply because a corporate interest wants to sell non-existent rights to Hollywood.

The rapid growth of the Internet was not merely the function of technological innovation. This fundamental restructuring of commerce and communications would not have been possible but for substantive legal reforms that adapted legacy legal concepts to comport with the realities of a hyper-connected Internet age. Arguably the most important legal and legislative development of the Internet era was the concept of intermediary liability limitations for Internet service providers. Or, stated in a less legalistic way, the policy choice that Internet services should not bear blame for bad people saying or doing bad things on the Internet. Given the size and scope of the Internet and the volume of online communications, it is safe to say that Facebook, Twitter, Google, Yelp, YouTube, Allegro, and Dailymotion would not exist today if the law evolved to hold websites and Internet services liable for the actions of their users. Further, imagine operating a telecommunications network with the sum of all this information passing through without being shielded from responsibility for the actions of all of your users. What venture capitalist in her right mind would invest in a platform that was exposed to liability for billions of websites beyond its control or trillions of posts composed by third parties? What would Internet business models look like if companies had to pre-screen all user communications before they went live?

Recent developments in Europe, including the Delfi ruling and the DSM "duty of care" proposal, suggest that Internet services may soon be asked to take a more active role in filtering user content. Yet even with advanced filtering tools, unlawful speech is almost always context dependent. Libel and defamation would not be obvious to a filter. Even more complex is when lawful speech is used unlawfully, as in the case of copyright and trademark infringement. Given that rules about these various types of speech are often the product of complex legal cases, even human review of every online communication would not completely shield an Internet company from liability, given that different people can come to different conclusions about whether speech is "harmful." Not to mention that standards for what is permissible speech vary widely from country to country.

Besides the commercial impact, the implications for free speech would also be disastrous. Protections from intermediary liability enable platforms to give people around the world a simple way to express themselves and to share what they love with the world, and to challenge the restrictions of oppressive governments. One study found that when online platforms are regulated on the basis of content submitted by their users, they remove large amounts of controversial but legal content for fear of facing penalties. The UN's Joint Declaration on Freedom of Expression on the Internet recognizes the success of laws such as the CDA, DMCA, and the E-Commerce Directive, stating that "intermediaries should not be required to monitor user-generated content and should not be subject to extrajudicial content takedown rules which fail to provide sufficient protection for freedom of expression."

Even if pre-screening and filtering at scale were feasible, the value of each individual communication — whether it takes the form of a website, a tweet, a Facebook post or a YouTube video — is negligible, where the potential legal exposure is huge; the potential damages for copyright law can reach $150,000 per work infringed. So, in a world where Internet companies were liable for the communications of their users, a rational company would be incentivized to aggressively censor content, leading to significant blocking of ostensibly legal speech as the costs of under blocking are significantly more than the costs of over blocking.

Historical Context on Intermediary Liability

Initially, the legal status of Internet companies was uncertain. Problematic cases arose where the courts found Internet companies liable for user-generated content. However, both the United States and the European Union were relatively quick to act. In the United States, Congress passed Section 230 of the Communications Decency Act in 1996, which shielded Internet service providers from liability for a variety of actions that were committed by their users. Although §230 specifically did not include intellectual property infringement, Congress passed the Digital Millennium Copyright Act in 1998, which shielded Internet platform providers from liability for their users' infringement provided they acted quickly to remove infringing content when notified. In the subsequent report that accompanied the bill, the Senate Judiciary Committee made clear that these intermediary liability provisions were necessary given that the size and scope of the Internet made it functionally impossible for Internet service providers to monitor all the material that they served or indexed. At the time, Yahoo!, the illustrious example used by the Committee, indexed 800,000 websites. Counting just websites, and not other forms of content on social media, the number of sites Yahoo! indexed in 1998 was less than 0.1% of the size of the current web. As new Internet entrepreneurs seek to join the Yahoos, Twitters, and Facebooks of the world, it is imperative that those companies are afforded the same legal protections that allowed the prior generation of Internet success stories to achieve scale.

Europe was also quick to embrace the concept of liability limitations. In 2000, the European Union adopted the e-Commerce Directive, which endorsed a similar notice-and-takedown framework of Internet service providers for most Internet content. Since it was a directive that needed to be interpreted by individual European countries, it resulted in some inconsistency of application that provided somewhat less certainty to Internet companies than the U.S. versions of Intermediary liability. Nevertheless, it has provided the necessary legal foundations for the Internet to grow and expand in Europe.

These laws do not create any general monitoring or filtering obligations for illegal or harmful content. US law states that a service provider need not monitor its service or seek out infringing activity in order to qualify for the DMCA safe harbor. (This provision is intended to protect user privacy. Without safe harbors in place, website administrators might be required to search through and peer into their users' otherwise hidden conversations.) Under the e-Commerce Directive, states may not impose general obligations on intermediaries to monitor information or to actively seek out unlawful activity.

If any reform of the e-Commerce Directive is needed, it should be in the direction of giving EU startups and platforms greater assurance that they will not be found liable for the speech of their users. Adopting a liability regime closer to §230 would provide a critical boost to the growth and global competitiveness of EU communications platforms, review sites, social media platforms, dating apps, e-commerce sites, and the next generation of digital innovators.

Intermediary Liability Enables Flexible Responses to Harmful Content

The existing rules in place in the US and EU have led to strong respect for rights. Internet platforms already take down a significant amount of content that infringes copyright. In addition, platforms respond to court orders and cooperate with law enforcement on issues like child sexual abuse imagery. Finally, while there's no one-size-fits-all solution to the problem of online abuse, many platforms have evolved highly effective community policing and report abuse systems that help stop the spread of harassment, hate speech, and other harmful content. For example, anyone on YouTube can flag a video for review, and Google employees review those flagged videos for abuse 24 hours per day. In 2014, 14 million videos were removed from YouTube for violation of the site's Community Guidelines. (Twitter and Facebook also have similar guidelines and flagging procedures that can lead to removal of content and the termination of accounts.)

Unfortunately, as part of its DSM initiative, some are calling for a re-opening of the e-Commerce Directive and implementing a new "duty of care" on Internet service providers. This "duty of care" would be effectuated by either narrowing, or completely removing, the liability safe harbors available to Internet companies under the e-Commerce Directive. According to the Staff Working Document that accompanied the DSM communication, the European Commission noted that it was considering "whether to enhance the overall level of protection from harmful material through harmonised implementation and enforcement of conditions which allow online intermediaries to benefit from the liability exemption." Furthermore, as part of this examination, the Commission is also asking "whether to ask intermediaries to exercise greater responsibility and due diligence in the way they manage their networks and systems… so as to improve their resistance to the propagation of illegal content."

The same document also acknowledges that the intermediary liability safe harbors included in the e-Commerce Directive "underpinned the development of the Internet in Europe." Let's hope this last statement is borne clearly in mind if any updating takes place, remembering that a consistent process across Europe could be useful, but that a weakening of the liability shield and an extension of proactive monitoring would be economically and socially disastrous.

Economic Effects of a "Duty of Care"

The ramifications for future competition and innovation are also dire if the European Union were to enact a broader duty of care provision for Internet intermediaries. Given the limitations of automatic filters, and the fact that harmful, illegal content is context dependent, new online companies that offer communications platforms will need to employ large teams of human filters to review user-generated content.

What does that mean for competition and innovation? It likely means that startups and new business models will be disproportionately affected. From a venture capital perspective, the imposition of new regulatory costs on traditionally lean startups means that fewer new ideas get funded. Given that Internet platforms often spend years developing a user base before they devise ways of turning their popularity into revenue, the added costs will also mean that many of these ideas either don't get funded, run out of money before achieving the necessary scale, or simply prove unable to turn a profit.

The companies best positioned to bear these new cost burdens are the current Internet incumbents who have large legal departments and significant revenue. And depending on how new regulation might be written, even a large number of human reviewers still cannot catch everything. The number of humans needed to review 500 million tweets a day or 1 trillion Facebook posts is mind-boggling. In the YouTube example alone, 300 hours of video uploaded per minute makes 18,000 hours per hour or 432,000 hours per day. That would require non-stop oversight from 18,000 people to vet everything–and that's assuming they never get a day off and never sleep. (Not to mention, this makes it harder to push back against laws from more authoritarian regimes demanding the censorship of "harmful information".)

If anything, for the Internet to continue to grow and thrive, liability limitations for online companies should be expanded and strengthened. It is a worthwhile and important endeavor for the European Commission to clarify and harmonize liability safe harbors across Europe. However, harmonization with a weakening of these safe harbors will have negative effects for both freedom of expression and Internet commerce.

from the don't-do-this dept

Bad ideas never die. Although there have been some recent minor steps in a positive direction concerning copyright in the EU, politicians have been trying to undermine them with really terrible ideas. We already covered the push to effectively outlaw outdoor photography, and now it appears that (despite already having this proposal voted down), some are pushing for a so-called "ancillary copyright" concept, better known as a snippet tax or a link tax.

The basic idea here is that newspapers that have failed to innovate want to blame third party aggregators (mainly Google News) for somehow "damaging" their business because they link to stories with snippets, and then send traffic to those newspaper websites. We've spent years talking about how it's weird to complain about a giant site sending you traffic, but some old school publishers can't seem to get past the fact that Google is big and successful while their own sites are not -- and assume that means that Google somehow "stole" their revenue. In response, they've pushed ridiculous proposals to require anyone who aggregates content with links back to the original to pay a weird fee, above and beyond the traffic that they're sending.

These plans have backfired pretty much everywhere they've been tried. Because it's nonsensical to charge someone to send you more traffic, aggregators have done things like removing those publishers or removing snippets only to see howls of protest from those same publishers who previously claimed that such things were "stealing." In the most extreme case, in Spain, where a law was written that made it mandatory for such a link tax, Google News shut down completely -- once again leading to howls of protest from the newspapers who previously had been arguing that Google was somehow stealing from them. It's an odd sort of "stealing" where you'd run complaining to the government when it goes away.

Either way, all this leads to a silly and nonsensical resolution from MEP Angelika Niebler, working with a number of German MEPs (Germany is where the strongest push for a link tax has come from), arguing for a special new copyright right, which it claims is about supporting journalism:

Calls on the Commission to evaluate and come forward with a proposal on how quality journalism can be preserved, even in the digital age, in order to guarantee media pluralism, in particular taking into account the important role journalists, authors and media providers such as press publishers play with regard thereto

While not directly calling for a link tax (which Niebler had pushed in an earlier amendment that had been rejected), it's a pretty obvious attempt to open the door for such a link tax to return in the near future. In the link above, MEP Julia Reda notes that Niebler's own party, the European People's Party (EPP) had already agreed that no more amendments would be added -- but Niebler went ahead and added it anyway.

The good folks at OpenMedia are vocally opposing this amendment and have set up a site at SaveTheLink.org with more information. The EU Parliament will vote on this proposal tomorrow. While it won't determine what the eventual law is, it may help guide dangerous future proposals that could have serious consequences for how the internet works (or doesn't) in Europe.

It's time for major publishers to get over the fact that they've failed to innovate and failed to keep up with the way the internet works, while others have stepped in and done a better job. Blaming others for your failures is one thing. Looking to the government to change the way the internet and free expression work, just to try to squeeze money out of the companies who did innovate, is a cynical and backwards looking move. EU citizens and their elected officials should not allow it to happen.

from the because-they're-paid-not-to-understand dept

As the copyright reform effort is underway in Europe, a number of legacy players are running a bit scared. The UK Publishers Association published a rather amusing attempt at "mythbusting" claims that reformers are making about copyright. Nate Hoffelder over at The Digital Reader does a nice job showing how many of the Publishers Association's claims are complete bunk, and clearly influenced by what's in the publishers' best interests, rather than anyone else's -- but that's to be expected. They're there to represent a position -- and rather than take a long-term view, recognizing that what's best for the public long-term will be best for the publishers as well, they take the short-term, protectionist, anti-consumer view. Because that's what these silly trade groups think they should do.

The document was released with a weird nonsensical statement from Richard Mollet, the head of the Publishers Association:

“It is time to debunk the long-pedalled myth that copyright is an obstacle to growth in the digital economy.

“When you look at the success of publishing and other creative industries in developing online products and services it is palpably untrue – copyright is the means by which the digital economy functions, allowing works to be made available to consumers and rewarding creators and the companies which invest in them.

“In order to undermine copyright, people often wrongly cite it as the source of problems in the digital single market; or, they falsely claim not to be able to do things which actually they can. Also, we often hear people propose that copyright is a block to them doing things which would be unfair and damaging to authors and publishers.

It is no myth that copyright has been an obstacle for many businesses. To claim otherwise is just laughable. An intellectually honest argument would admit that copyright law clearly benefits some parties and harms others. The policy questions we should be arguing are about who is helped and who is harmed and what's best overall for society and culture. But, the Publishers Association doesn't even want to give an inch and can't even admit that some innovators are clearly held back by today's copyright law.

The last paragraph really gets at the crux of the full document they posted, because the summary is basically "people are upset about this thing they can't do -- but they can do it if only they pay us lots of money." That's basically the argument behind nearly all of the "myths" the document "busts."

First, it claims that the idea that Europe needs a "single digital market" is bunk because you can just license everything in different regions with today's law:

Copyright is delivering a digital single market. The ability of publishers to simultaneously license works across
the EU – and in many cases the world – derives from the current copyright framework.

Then they mock the idea that text and data mining uses are blocked under copyright law... because, again, they can just license:

The market-based licence solutions can be tailored to the needs of different researchers and enable publishers
to check bona fides and ensure the integrity of the content platform.

How about students being unable to access resources across borders? No problem, the publishers claim, we have a license for that!

The licences under which
publishers provide universities with material do permit students to access course materials from anywhere in
the EU (and very often the world).

Okay, what about teachers looking for resources from other countries? Well, the Publishers insist, no one really wants that anyway, and if they did, well, there's a license for that:

There is no effective demand for this. In both the primary and secondary school markets textbooks and other
resources are produced explicitly to assist the delivery of each member state’s curriculum. As such the supply
and demand for such materials is highly country-specific and cross-border requirements are minimal. Should
there be such a demand (for example, if a school in France was teaching the English curriculum) then these
materials can easily be sourced and a licence secured.

What about libraries lending ebooks? Guess what? The publishers say you can license that as well:

A variety of agreements
between authors, publishers and libraries are in place across the EU which are giving rise to thriving models
of e-book lending. The licences underpinning these models help ensure that authors are rewarded when
their works are enjoyed, and ensures that authors are willing for their works to be borrowed in this way.

Yeah, but that's not how regular libraries work at all -- and that model kinda worked pretty damn well for a long time. Libraries didn't have to pay royalties every time someone checked out a book. Changing up that model may make publishers happy, but it makes life more difficult for everyone else.

In short, the Publishers insist, don't reform copyright law because as long as you give the publishers enough money, they'll let you do what you want. This isn't just tone deaf, it totally misses the point. It's an argument for permission-based learning and permission-based culture. It shows no recognition of how actual education and learning occurs. It shows no recognition of the power of being able to research and learn from a variety of sources. It shows no understanding of the ridiculous prices these publishers often like to charge for many of these "licensed" solutions -- and the simple fact that they will often hold back these licenses.

And, most importantly, it shows no recognition of the fact that requiring different licenses in every region is a massive waste of resources and efficiency. But the publishers don't care because that inefficiency is where they make money.

The other "myths" are just as laughable and can basically be summed up as "this is a myth because we don't like that idea." For example, they hate the idea of "exceptions" to copyright law being "harmonized" because it might mean some countries that have overly aggressive rights might lose those. Notice that the following gives not even the slightest nod of interest to the rights of the public.

Fully harmonising exceptions so that the same rules are mandated across the EU will be hugely disruptive
and would result in some creators being deprived of rights. There are different legal traditions across the
EU with long-established precedents in place (for example, in France there is a much stronger protection of
the author’s moral rights). Variations in copyright law, within the over-arching framework of the Directive, are
currently permitted in order to recognise these inherent cultural and legal differences. Imposing a single order
on the whole of the EU’s creators would almost inevitably cause some to have their rights eroded.

Yes, that's the point. There's a tradeoff here, and people are arguing that giving the public slightly more rights to works can actually help culture overall. Yes, some artists might lose some currently granted "rights" to block people, but that doesn't mean those artists are harmed. It just changes the marketplace somewhat, and likely will help expand it by simplifying rules across a much larger territory.

The list also trots out the usual talking points by those who are against fair use in other countries -- claiming that even though the US has it, it would somehow totally upend the legal systems anywhere else:

The introduction of Fair Use would be highly disruptive and expensive for creators and consumers. There is
no established basis in European law for the concept of “fair use”, whereas in the US it has been fine-tuned
over 170 years of established legal precedents. Simply introducing the concept into EU law would presage
a great number of legal cases, with associated high legal costs, as the market – and judges – came to an
agreement as to what the terms allowed and precluded. Since there is no evidence that the present system
is in need of radical reform, introducing Fair Use would be an unnecessary and damaging step, and one which
would have limited application given that international rules on copyright, such as the Three Step Test, would
still apply.

Way to sell Europe short, Publishers. It is entirely possible to implement a fair use system today. Arguing that it cannot be done is clearly hogwash. In fact, all that case law in the US should actually help the EU to develop a better fair use system, since many of the questions have already been debated and answered and the EU can draft accordingly.

We'll close with the final one, because it's just so insane and so ridiculous:

MYTH #10 An ebook is the same as a normal book and therefore I should be able to resell it

It is not the same. Physical and digital books have very different properties and so require different treatments
as regards the ability to re-sell them. An ebook is easier to copy and digital copies are identical clones of the
original work meaning that second-hand goods are largely indistinguishable from the original; they can be
reproduced indefinitely without any loss of quality. They can also be circulated widely without control but even
introducing a “forward and delete” function would not provide effective protection given the ease with which
such measures can be circumvented. It is clear that the existence of a market for second hand digital copies
will destroy the primary market for authors and publishers.

Of course, as Nate wrote in his piece, if that were true, piracy would have already eroded the book market entirely, but it hasn't. Either way, the Publishers' position on ebooks appears to be: (1) we get paid many times for the same book and (2) we block you from reselling it. In short, they're focused on taking away value from ebooks, to make them even less valuable than regular books.

from the if-we-just-call-it-net-neutrality,-maybe-no-one-will-notice dept

In 2014, it really looked like Europe was moving towards strong net neutrality, while the US was going to allow for special fast lanes on the internet. In 2015... everything has gone the other way. The US passed real net neutrality rules, while Europe has not only decided to kill net neutrality, but has done so in a way where they pretend that they're actually supporting net neutrality.

In some way, this isn't a surprise. EU Digital Commissioner Gunther Oettinger recently mocked net neutrality and its supporters, saying they had turned it into a "Taliban-like" issue. Then a month ago, rumors started to fly that the weekly "trialogue" meetings between the EU Commission, the Council of the EU and the EU Parliament was looking to ditch net neutrality altogether. Instead, it appears that the final solution was actually to redefine net neutrality to pretend they were offering it, while really killing it. And, as a consolation prize, they're killing off roaming charges around Europe (which can be pretty extreme). But that is little consolation for the fact that they're actually destroying net neutrality in the process.

The little trick being pulled by politicians who apparently think the public is too stupid to understand this is to redefine net neutrality. First, they claim that the "open internet" is really important and they won't allow paid prioritization. This part all sounds good:

The rules enshrine the principle of net neutrality into EU law: no blocking or throttling of online content, applications and services. It means that there will be truly common EU-wide Internet rules, contributing to a single market and reversing current fragmentation.

Every European must be able to have access to the open Internet and all content and service providers must be able to provide their services via a high-quality open Internet.

All traffic will be treated equally. This means, for example, that there can be no paid prioritisation of traffic in the Internet access service. At the same time, equal treatment allows reasonable day-to-day traffic management according to justified technical requirements, and which must be independent of the origin or destination of the traffic.

Sounds good, right? But there's a pretty big catch. Those rules and the "open internet" don't cover what most people think of as the internet. Instead, it's been boxed in. Because the deal also creates a made up new categorization known as "specialized services" where such prioritization will be allowed.

What are specialised services (innovative services or services other than Internet access services)?

The new EU net neutrality rules guarantee the open Internet and enable the provision of specialised or innovative services on condition that they do not harm the open Internet access. These are services like IPTV, high-definition videoconferencing or healthcare services like telesurgery. They use the Internet protocol and the same access network but require a significant improvement in quality or the possibility to guarantee some technical requirements to their end-users that cannot be ensured in the best-effort open Internet. The possibility to provide innovative services with enhanced quality of service is crucial for European start-ups and will boost online innovation in Europe. However, such services must not be a sold as substitute for the open Internet access, they come on top of it.

Got it? The "regular" internet has no fast lanes. But... right over here, we have the "specialized services" part of the internet which, you know, kinda looks like a fast lane. Because it is. So, now, basically, in Europe you can buy your way into the fast lane by claiming your services are "specialized" and watching as the regular internet pokes along at slower speeds.

The agreement does a lot of handwaving to pretend this doesn't destroy net neutrality, but the more handwaving they do, the more obvious it is that the politicians here know exactly what they're doing:

By allowing the provision of innovative services, are we not promoting a two-tier Internet?

No. Every European must be able to have access to the open Internet and all content and service providers will be able to provide their services via a high-quality open Internet. But more and more innovative services require a certain transmission quality in order to work properly, such as telemedicine or automated driving. These and other services that can emerge in the future can be developed as long as they do not harm the availability and the quality of the open Internet.

Therefore it is important to have future proof rules which, while fully safeguarding the open Internet, allow market operators to provide services with specific quality requirements in order to provide them in safe manner. It is not a question of fast lanes and slow lanes - as paid prioritisation is not allowed, but of making sure that all needs are served, that all opportunities can be seized and that no one is forced to pay for a service that is not needed.

Oh, and of course, the new rules allow zero rating, which is the sneaky trick by which telcos use data caps to backdoor in preferential treatment to those willing to pay, while pretending this is some sort of benefit to consumers. The EU sees no problem with this, despite the fact that it enables large internet companies to squeeze out startups and smaller players.

What is zero rating?

Zero rating, also called sponsored connectivity, is a commercial practice used by some providers of Internet access, especially mobile operators, not to count the data volume of particular applications or services against the user's limited monthly data volume.

Zero rating does not block competing content and can promote a wider variety of offers for price-sensitive users, give them interesting deals, and encourage them to use digital services. But we have to make sure that commercial practices benefit users and do not in practice lead to situations where end-users' choice is significantly reduced. Regulatory authorities will therefore have to monitor and ensure compliance with the rules.

Of course, Digital Commissioner Oettinger inadvertently appeared to confirm that this is the end of net neutrality with his poorly worded tweet on the subject, in which he notes that this is "the end of roaming and net neutrality."

Obviously, he only meant "the end of" to apply to roaming, but having it cover net neutrality as well would be a lot more accurate. Either way, while Oettinger once compared it to a Taliban-like issue, his response has been more on the Orwellian side of things. So long as they redefine the words, the government hopes no one will notice what they actually did. It's the public officials' way of thinking that they're clever and that the public is stupid. That seems like an unwise assumption.

from the trademark-barred dept

There's apparently something of a chocolate war going on in Europe, where rival confectioneries all go around trying to trademark silly aspects of their products while everyone else blocks them. Cadbury reportedly kicked all this off some years back, attempting to trademark the color purple (seriously), before Nestle came in and objected, getting the trademark overturned. The most recent edition of this sweet-war is Nestle's consternation over not being able to trademark the Kit Kat bar's four-bar shape.

This probably requires some brief background. See, the UK is the birth-place of the Kit Kat bar. Back in 2013, Nestle decided that the candy had developed a distinction through its shape such that the four-bar shape deserved its own trademark (there was no attempt made on the two-bar fun-sized version). Nestle initially went to the Office of Harmonization of the Internal Market (OHIM), which essentially assigns trademarks for the EU, in 2012. But in 2013, the UK declined to confer a trademark on the Kit Kat shape. The reason for declining was that four bars of chocolate weren't a distinct enough thing to warrant its own mark.

Cadbury is the one objecting to the Kit Kat shape trademark and they've kept up the pressure, despite Nestle's appeals. The latest development is likely the penultimate nail in this issue's coffin, however.

Confectionery giant Nestle's attempt to trademark the shape of its four-finger KitKat bar in the UK does not comply with European law, a senior European Court lawyer has said. The opinion of the advocate-general effectively ends Nestle's attempts to trademark the snack.

That's because the courts generally listen to the advocate-general on these matters, not to mention that the UK has already been predisposed to denying the trademark and the fact that every next EU entity that gets involved seems to have a different opinion likely means the UK courts will simply affirm the denial of the trademark.

Now, it's perhaps worth noting that we, the Techdirt staff, have had some discussions about this case previously and there's been some disagreement about it. Some of us think that the Kit Kat shape is indeed distinct enough to warrant a mark. Others, including myself, do not. My reason is pretty simple: I tend to see trademark as chiefly a way to keep consumers from buying one product when they had intended to buy another. With that in mind, I've never heard of anyone buying a Kit Kat bar outside of the wrapper that covers up the shape, so I think the idea of getting a trademark on the shape is kind of dumb. That said, I should note the UK court didn't take to that line of thinking, asserting only a lack of distinction in the shape.

from the this-is-big-and-dangerous dept

Last year we wrote about a very dangerous case going to the European Court of Human Rights: Delfi AS v. Estonia, which threatened free expression across Europe. Today, the ruling came out and it's a disaster. In short, websites can be declared liable for things people post in comments. As we explained last year, the details of the case were absolutely crazy. The court had found that even if a website took down comments after people complained, it could still be held liable because it should have anticipated bad comments in the first place. Seriously. In this case, the website had published what everyone agrees was a "balanced" article about "a matter of public interest" but that the website publisher should have known that people would post nasty comments, and therefore, even though it automated a system to remove comments that people complained about, it was still liable for the complaints.

The European Court of Human Rights agreed to rehear the case, and we hoped for a better outcome this time around -- but those hopes have been dashed. The ruling is terrible through and through. First off, it insists that the comments on the news story were clearly "hate speech" and that, as such, "did not require any linguistic or legal analysis since the remarks were on their face manifestly unlawful." To the court, this means that it's obvious such comments should have been censored straight out. That's troubling for a whole host of reasons at the outset, and highlights the problematic views of expressive freedom in Europe. Even worse, however, the Court then notes that freedom of expression is "interfered with" by this ruling, but it doesn't seem to care -- saying that it is deemed "necessary in a democratic society."

Think about that for a second.

The Court tries to play down the impact of this ruling, by saying it doesn't apply to any open forum, but does apply here because Delfi was a giant news portal, and thus (1) had the ability to check with lawyers about this and (2) was publishing the story and opening it up for comments.

The rest of the ruling is... horrific. It keeps going back to this "hate speech" v. "free speech" dichotomy as if it's obvious, and even tries to balance the "right to protection of reputation" against the right of freedom of expression. In other words, it's the kind of ridiculous ruling that will make true free expression advocates scream.

When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8

And the court insists that the two things -- reputation protection and free speech "deserve equal respect." That's bullshit, frankly. The whole concept of a right to a reputation makes no sense at all. Your reputation is based on what people think of you. You have no control over what other people think. You can certainly control your own actions, but what people think of you?

The court sets up a series of areas to explore in determining if Defli should be held liable for those comments. In the US, thanks to Section 230 of the CDA, we already know the answer here would be "hell no." But without a Section 230 in Europe -- and with the bizarre ideas mentioned above -- things get tricky quickly. So even though the court readily agrees that the article Defli published "was a balanced one, contained no offensive language and gave rise to no arguments about unlawful statements" it still puts the liability on Delfi. Because the site wanted comments. It actually argues that because Delfi is a professional site and thus comments convey economic advantage, Delfi is liable:

As regards the context of the comments, the Court accepts that the news article about the ferry company, published on the Delfi news portal, was a balanced one, contained no offensive language and gave rise to no arguments about unlawful statements in the domestic proceedings. The Court is aware that even such a balanced article on a seemingly neutral topic may provoke fierce discussions on the Internet. Furthermore, it attaches particular weight, in this context, to the nature of the Delfi news portal. It reiterates that Delfi was a professionally managed Internet news portal run on a commercial basis which sought to attract a large number of comments on news articles published by it. The Court observes that the Supreme Court explicitly referred to the fact that the applicant company had integrated the comment environment into its news portal, inviting visitors to the website to complement the news with their own judgments and opinions (comments). According to the findings of the Supreme Court, in the comment environment, the applicant company actively called for comments on the news items appearing on the portal. The number of visits to the applicant company’s portal depended on the number of comments; the revenue earned from advertisements published on the portal, in turn, depended on the number of visits. Thus, the Supreme Court concluded that the applicant company had an economic interest in the posting of comments. In the view of the Supreme Court, the fact that the applicant company was not the writer of the comments did not mean that it had no control over the comment environment...

Also? Having "rules" posted for comments somehow increases the site's liability, rather than lessens it as any sane person would expect:

The Court also notes in this regard that the “Rules of comment” on the Delfi website stated that the applicant company prohibited the posting of comments that were without substance and/or off-topic, were contrary to good practice, contained threats, insults, obscene expressions or vulgarities, or incited hostility, violence or illegal activities. Such comments could be removed and their authors’ ability to post comments could be restricted. Furthermore, the actual authors of the comments could not modify or delete their comments once they were posted on the applicant company’s news portal – only the applicant company had the technical means to do this. In the light of the above and the Supreme Court’s reasoning, the Court agrees with the Chamber’s finding that the applicant company must be considered to have exercised a substantial degree of control over the comments published on its portal.

Yes, that's right. They get in more trouble for posting rules saying behave. It's incredible.

The next key finding: because commenters are anonymous and anonymity is important -- and because it's difficult to identify anonymous commenters -- well, fuck it, just put the liability on the site instead. That really does seem to be the reasoning:

According to the Supreme Court’s judgment in the present case, the injured person had the choice of bringing a claim against the applicant company or the authors of the comments. The Court considers that the uncertain effectiveness of measures allowing the identity of the authors of the comments to be established, coupled with the lack of instruments put in place by the applicant company for the same purpose with a view to making it possible for a victim of hate speech to effectively bring a claim against the authors of the comments, are factors that support a finding that the Supreme Court based its judgment on relevant and sufficient grounds. The Court also refers, in this context, to the Krone Verlag (no. 4) judgment, where it found that shifting the risk of the defamed person obtaining redress in defamation proceedings to the media company, which was usually in a better financial position than the defamer, was not as such a disproportionate interference with the media company’s right to freedom of expression....

Further on the question of liability, the court finds that because Delfi's filter wasn't good enough, that exposes it to more liability. I wish I were making this up.

Thus, the Court notes that the applicant company cannot be said to have wholly neglected its duty to avoid causing harm to third parties. Nevertheless, and more importantly, the automatic word-based filter used by the applicant company failed to filter out odious hate speech and speech inciting violence posted by readers and thus limited its ability to expeditiously remove the offending comments. The Court reiterates that the majority of the words and expressions in question did not include sophisticated metaphors or contain hidden meanings or subtle threats. They were manifest expressions of hatred and blatant threats to the physical integrity of L. Thus, even if the automatic word-based filter may have been useful in some instances, the facts of the present case demonstrate that it was insufficient for detecting comments whose content did not constitute
protected speech under Article 10 of the Convention.... The Court notes that as a consequence of this failure of the filtering mechanism, such clearly unlawful comments remained online for six weeks....

Then the court says that because the "victims" of "hate speech" can't police the interwebs, clearly it should be the big companies' responsibility instead:

Moreover, depending on the circumstances, there may be no identifiable individual victim, for example in some cases of hate speech directed against a group of persons or speech directly inciting violence of the type manifested in several of the comments in the present case. In cases where an individual victim exists, he or she may be prevented from notifying an Internet service provider of the alleged violation of his or her rights. The Court attaches weight to the consideration that the ability of a potential victim of hate speech to continuously monitor the Internet is more limited than the ability of a large commercial Internet news portal to prevent or rapidly remove such comments.

Finally, the court says that since the company has stayed in business and is still publishing, despite the earlier ruling, it proves that this ruling is no big deal for free speech.

The Court also observes that it does not appear that the applicant company had to change its business model as a result of the domestic proceedings. According to the information available, the Delfi news portal has continued to be one of Estonia’s largest Internet publications and by far the most popular for posting comments, the number of which has continued to increase. Anonymous comments – now existing alongside the possibility of posting registered comments, which are displayed to readers first – are still predominant and the applicant company has set up a team of moderators carrying out follow-up moderation of comments posted on the portal (see paragraphs 32 and 83 above). In these circumstances, the Court cannot conclude that the interference with the applicant company’s freedom of expression was disproportionate on that account either.

The ruling is about as bad as you can imagine. It is absolutely going to chill free expression across Europe. Things are a bit confusing because the EU Court of Justice has actually been much more concerned about issues of intermediary liability, and this ruling contradicts some of those rulings, but since the two courts are separate and not even part of the same system, it's not clear what jurisdiction prevails. It is quite likely, however, that many will seize upon this European Court of Human Rights ruling to go after many websites that allow comments and free expression in an attempt to block it. It is going to force many sites to either shut down open comments, curtail forums or moderate them much more seriously.

For a Europe that is supposedly trying to build up a bigger internet industry, this ruling is a complete disaster, considering just how much internet innovation is based on enabling and allowing free expression.

There is a dissenting opinion from two judges on the court, who note the "collateral censorship" that is likely to occur out of all of this.

In this judgment the Court has approved a liability system that imposes a requirement of constructive knowledge on active Internet intermediaries (that is, hosts who provide their own content and open their intermediary services for third parties to comment on that content). We find the potential consequences of this standard troubling. The consequences are easy to foresee. For the sake of preventing defamation of all kinds, and perhaps all “illegal” activities, all comments will have to be monitored from the moment they are posted. As a consequence, active intermediaries and blog operators will have considerable incentives to discontinue offering a comments feature, and the fear of liability may lead to additional self-censorship by operators. This is an invitation to self-censorship at its worst.

It further notes how this works -- in such a simple manner it's disturbing that the court didn't get it:

Governments may not always be directly censoring expression, but by putting pressure and imposing liability on those who control the technological infrastructure (ISPs, etc.), they create an environment in which collateral or private-party censorship is the inevitable result. Collateral censorship “occurs when the state holds one private party A liable for the speech of another private party B, and A has the power to block, censor, or otherwise control access to B’s speech”. Because A is liable for someone else’s speech, A has strong incentives to over-censor, to limit access, and to deny B’s ability to communicate using the platform that A controls. In effect, the fear of liability causes A to impose prior restraints on B’s speech and to stifle even protected speech. “What looks like a problem from the standpoint of free expression ... may look like an opportunity from the standpoint of governments that cannot easily locate anonymous speakers and want to ensure that harmful or illegal speech does not propagate.” These technological tools for reviewing content before it is communicated online lead (among other things) to: deliberate overbreadth; limited procedural protections (the action is taken outside the context of a trial); and shifting of the burden of error costs (the entity in charge of filtering will err on the side of protecting its own liability, rather than protecting freedom of expression).

It's disappointing they were unable to convince their colleagues on this issue. This ruling is going to cause serious problems in Europe.